# C_2007297EN.01000801.xml

| 8.12.2007 | EN | Official Journal of the European Union | C 297/8 |
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8.12.2007

EN

Official Journal of the European Union

C 297/8

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Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Court of Cassation — France) — Européenne et Luxembourgeoise d'investissements SA (ELISA) v Directeur général des impôts, Ministère public

(Case C-451/05) (1)

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(Direct taxation - Tax on the commercial value of immovable property in France owned by legal persons - Holding companies under Luxembourg law - Refusal of exemption - Directive 77/799/EEC - Non-exhaustive list of specified taxes and duties - Tax similar in nature - Limits to exchange of information - Bilateral convention - Article 73b of the EC Treaty (now Article 56 EC) - Free movement of capital - Combating tax evasion)

(2007/C 297/11)

Language of the case: French

Referring court

Court of Cassation

Parties to the main proceedings

Applicant: Européenne et Luxembourgeoise d'investissements SA (ELISA)

Applicant:

Defendant: Directeur général des impôts, Ministère public

Defendant:

Re:

Reference for a preliminary ruling — Court of Cassation (France) — Interpretation of Article 43 EC et seq. and Article 56 EC et seq., and Article 1 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) — Tax on the commercial value of immoveable property situated in France — Exemption of legal persons having their effective centre of management in France, legal persons which, under a treaty, are not to be taxed more heavily and legal persons having their seat in a country or territory which has concluded with France a convention on administrative assistance to combat tax evasion and avoidance — Refusal to grant an exemption to a Luxembourg holding company.

et seq.

et seq.

Operative part of the judgment

| 1) | The tax on the commercial value of immovable property owned in France by legal persons is a tax which is similar in nature to those taxes referred to in Article 1(3) of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, as amended by Council Directive 92/12/EEC of 25 February 1992, which is levied on elements of capital within the meaning of Article 1(2) of that directive; |
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1)

The tax on the commercial value of immovable property owned in France by legal persons is a tax which is similar in nature to those taxes referred to in Article 1(3) of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, as amended by Council Directive 92/12/EEC of 25 February 1992, which is levied on elements of capital within the meaning of Article 1(2) of that directive;

| 2) | Directive 77/799, as amended by Directive 92/12, and in particular Article 8(1) thereof, does not preclude two Member States from binding themselves by means of an international convention, with the intention of avoiding double taxation and establishing rules for reciprocal administrative assistance in the area of taxes on income and capital, which excludes from its scope, in respect of one Member State, one category of taxpayers subject to a tax covered by that directive, if the competent authority of the Member State which should furnish information is prevented by its laws or administrative practices from collecting or using such information for that State's own purposes, this being a matter which it is for the national court to verify; |
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2)

Directive 77/799, as amended by Directive 92/12, and in particular Article 8(1) thereof, does not preclude two Member States from binding themselves by means of an international convention, with the intention of avoiding double taxation and establishing rules for reciprocal administrative assistance in the area of taxes on income and capital, which excludes from its scope, in respect of one Member State, one category of taxpayers subject to a tax covered by that directive, if the competent authority of the Member State which should furnish information is prevented by its laws or administrative practices from collecting or using such information for that State's own purposes, this being a matter which it is for the national court to verify;

| 3) | Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which exempts companies established in France from the tax on the commercial value of immovable property owned in France by legal persons, when, in respect of companies established in another Member State, it makes that exemption subject either to the existence of a convention on administrative assistance between the French Republic and that State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those companies cannot be more heavily taxed than companies established in France, and which does not allow the company established in another Member State to supply evidence to establish the identity of the natural persons who are its shareholders. |
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3)

Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which exempts companies established in France from the tax on the commercial value of immovable property owned in France by legal persons, when, in respect of companies established in another Member State, it makes that exemption subject either to the existence of a convention on administrative assistance between the French Republic and that State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those companies cannot be more heavily taxed than companies established in France, and which does not allow the company established in another Member State to supply evidence to establish the identity of the natural persons who are its shareholders.

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(1)  OJ C 60, 11.3.2006.

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